Michael Stockdale
Hearsay: Common Law Exceptions Preserved by CJA 2003 s.118 in Criminal Proceedings
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Preserved common law exceptions to the hearsay rule preserved by section 118 of the Criminal Justice Act 2003 in the context of criminal proceedings.
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Section 118 of the 2003 Act preserves a variety of common law exceptions to the rule against hearsay whilst abolishing others. In this presentation we will consider four of the preserved hearsay exceptions. If you want details of the other preserved exceptions, they are considered in your text book. The four we are considering are hearsay statements, which are sometimes said at common law to form part of the res gestae, statements which in a sense might be said to be so linked to a transaction, to an event of some sort that it might be misleading or ludicrous to make the jury aware of the event, the transaction, without making them aware of the words also, That being said, it may be somewhat artificial to try and explain all four exceptions as possessing a single coherent rationale, as you will see when we consider them in more detail below.
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The four hearsay exceptions to which I refer in the slide above, although in fact they are grouped as three in section 118 itself, are statements made by persons emotionally overpowered by events, statements relating to their makers’ contemporaneous physical sensations, statements concerning their makers’ contemporaneous mental states and statements accompanying their makers’ contemporaneous actions.
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As regards statements made by persons emotionally overpowered by events, such statements are admissible at common law if the mind of the person who made the hearsay statement was so dominated by what we might call an exciting event at the time when that person made the statement that the court can disregard the possibility that that person concocted or deliberately distorted the information contained in the hearsay statement. But in deciding whether to admit such evidence, the judge should take into account any evidence giving rise to the possibility that the maker of the statement deliberately concocted or distorted the statement, such as bias, should also consider any evidence giving rise to the possibility that the maker of the hearsay statement was in error, for example where that person was very drunk at the time when he made the hearsay statement.
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For a hearsay statement to be admissible under this preserved common law hearsay exception, there must be evidence to show that the unusual startling or dramatic event took place other than merely the words of the statement itself. So if A tells B that A has been punched by Z and there is no other evidence that this was so, no bruising, no signs of a struggle, no noise, no perhaps excitement or hysteria in A’s voice, the statement can’t make itself admissible, merely because A told B that the event had happened. So there must be some evidence of the event taking place other than just the words of the statement in order for the statement to be admissible on the basis that the mind of its maker was dominated by an exciting event. Most of the case law concerns situations where the person who made the statement was the victim of an offence, who perhaps was stunned or dying or whatever at the time when he made the statement, but there is nothing to stop it applying to a third party witness or even the accused as the case law demonstrates. You’ll see this in the text book. Similarly, whilst normally the exciting event will be the commission of the offence itself, that isn’t necessarily the case. An exciting event that is taking place close to the commission of the offence could in appropriate circumstances also satisfy the exception. If the mind of the maker of the statement was so dominated at the time when the statement was made, there was little or no possibility of fabrication or concoction or distortion.
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If the judge does admit hearsay under this exciting events exception, then he should direct the jury that they must be sure that the witness was not mistaken and they must be sure that there was no deliberate concoction or distortion.
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Which of the following propositions is or are true?
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Here we clearly have got a hearsay statement. The statement was made by Zoë out of court, i.e. it wasn’t made by her whilst giving direct oral evidence at the trial. It’s being relied on at the trial as evidence of the matter stated, i.e. to prove that she was stabbed by Albert. So the question is have we got a hearsay exception? The common law res gestae exception concerning exciting events does appear to be applicable because presumably when Zoë was stabbed in the chest, this was a pretty exciting event. It would have dominated her mind whilst she was dying. But clearly the judge should take into account, and he should direct the jury to do so if he admits the evidence, both the bias and the heavy drinking, and they must be satisfied that the bias did not result in fabrication or concoction and the heavy drinking did not result in error in order for the evidence to be admitted. But potentially this statement could go in under the res gestae exciting event common law exception. Moreover, as you have seen in a different presentation, another exception that could apply here would be section 116 of the 2003 Act, a statutory hearsay exception that applies to unavailable witnesses, and a third possibility would be the section 114 inclusionary discretion, which is also considered in a different PowerPoint presentation.
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Which one of these two propositions is true?
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Again, we clearly have a hearsay statement. It was made out of court, not in the proceedings themselves. It’s being relied upon as evidence of the matters stated so it is hearsay. The common law res gestae exciting event exception does not appear to apply because there is no evidence of the exciting event other than the words themselves. Having said that, it may be that other exceptions could apply, for example the section 114 inclusionary discretion which we considered in a different PowerPoint presentation.
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The second of the reserved common law hearsay exceptions we’re considering, again forming part of the old common law res gestae doctrine, concerns those statements that relate to their makers’ contemporaneous physical sensations. For example, if A tells B that A has a pain in his back and this later turns out to be relevant to an issue in a criminal trial, it would fall within this exception, but only to the limited extent that it’s admissible to prove the person had the sensation. If A told B that the bad back was caused by C punching him in the back, it wouldn’t be admissible under this exception to prove what the cause of the sensation was. But having said that, it could still go in perhaps under some other hearsay exception such as for example the section 114 inclusionary discretion, which we saw in a different presentation, or perhaps section 116 if the maker of the statement was unavailable to be a witness. You should also note that the exception does not apply where the existence of a physical exception and the maker of the statement were not contemporaneous. So, for example, if A tells B that seven years ago A had a bad back, the statement is not admissible under this exception because he didn’t have the bad back roughly at the time when he made the statement. Although precise contemporaneity is not required, and what isn’t is not contemporaneous is a question of fact and degree, i.e. a matter which the court can deal with with some flexibility.
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Which of these propositions is or are true?
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We’ve clearly got a hearsay statement here, again made out of court, not in the course of the proceedings. Again, presumably it’s going to be relied upon as evidence of the matter stated. It does appear to fall within the common law res gestae doctrine because it is a statement whereby the maker is describing his contemporaneous physical sensations. But it doesn’t go in under that particular common law rule to prove the cause of the sensation. Having said that, other exceptions could be relied upon to prove the cause. For example, section 116 of the 2003 Act or section 114 inclusionary discretion, both of which were considered in a different presentation.
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The third of the preserved common law exceptions we’re considering, again an aspect of the old common law res gestae doctrine, concerns those statements which concern their makers’ contemporaneous states, i.e. where A tells B that A hates C so much that he could kill him or A tells B he intends to kill C, or restates the matter that he believes to be true. Any of these sort of situations, if the statement can go in to prove the maker’s state of mind, his knowledge, his belief, his intention, but it is not admissible to prove the truth of those beliefs, merely their existence, and it’s not admissible if the existence of the state of mind and the maker of the statement were not contemporaneous. So, for example, if A tells B that several years ago he hated C so much he could have killed him, that would not be contemporaneous because his possessing that hatred was not contemporaneous, not at the same time or roughly at the same time as the making of the statement. But again this is a question of fact and degree.
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Evidence is only admissible under this preserved common law hearsay exception where the maker’s state of mind is a fact in issue in the proceedings or is relevant to a fact at issue. There is some authority you will see in the text book for the proposition that statements of intention can be admissible, not just to prove state of mind but also to prove that the intention was carried out, but that’s never been finally decided and thirdly sometimes evidence of a statement which A makes to B will not be hearsay evidence if the issue before the court is whether B believed A. We saw an example of this in the Hearsay PowerPoint presentation in relation to the offence of duress. So if A tells B to rob a bank and says if B doesn’t do so, A will shoot him. B robs the bank, then relies upon the defence of duress in the subsequent robbery trial. B can repeat A’s threats and in so doing will not be relying upon hearsay evidence because he isn’t trying to prove that A would have shot him, had he not robbed the bank. He is merely trying to prove that A made the threat and that B believed it. And so since he isn’t relying upon A’s statement as evidence of the matter stated, there is no hearsay issue, as we saw in the earlier hearsay PowerPoint presentation.
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Is this proposition true or false?
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Well here we can’t apply the old common law res gestae doctrine as a statement of contemporaneous mental state because the statement itself was made in 2005 but it relates a past hatred which goes back to 1980. It therefore is not a contemporaneous statement and therefore would not be admissible under the res gestae doctrine.
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The final of the four preserved common law hearsay exceptions, again forming part of the old res gestae doctrine, we were considering in this presentation are statements which accompany their makers’ contemporaneous actions. Essentially a situation where A performs an act and at the same time or roughly the same time makes a statement explaining why he is performing the act. Such statements are admissible to show why the person performed the act, but they’re not admissible where performing the act and making the statement are not contemporaneous. But again what is or is not contemporaneous is a question of fact and degree, one the court can approach with a degree of flexibility, and, for example, if the act is a long term continuing act, that’s to say several years, for example being in France, statements made at any time during its continuation e.g. where the person in France writes or ‘phones different people to say why he is in France, can all be contemporaneous thereto.
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Again, this common law hearsay exception only applies where the act to which the exception potentially relates is relevant to a fact in issue in the proceedings.
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Is this proposition true or false?
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Here a statement made by Tina explains the act which she is performing at the relevant time. Consequently, since it was a contemporaneous statement, it does appear to be potentially admissible under the old common law res gestae doctrine as a statement explaining a contemporaneous act.
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As we saw in a previous PowerPoint presentation concerning statutory hearsay exceptions, the admission of hearsay evidence in criminal proceedings does have the potential defined in article 6 of the European Convention on Human Rights because the accused does have the right to examine or have examined the witnesses against him, and of course he can’t do this where the evidence of an absent witness is adduced as hearsay evidence. But putting hearsay in will not automatically violate article 6 as English Law is entitled to have its own evidential rules.
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In deciding whether admitting hearsay does violate article 6, the crucial question will be whether admitting the hearsay has deprived the accused of a fair trial or whether, even though the hearsay has been admitted, the accused has still had a fair trial.
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A variety of factors may be of relevance in determining whether admitting hearsay has made the accused’s trial unfair. For example, has the accused had an opportunity to examine the maker of the statement on an earlier occasion? What is the quality or reliability of the evidence, how reliable is it, of good quality? Why did the judge think it was necessary to admit the evidence? What steps can the judge take to counterbalance any handicap to the accused resulting from admitting the evidence? For example, has the defence had an opportunity to try and discredit the maker in his absence. Other factors are considered on the following slide.
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Other factors would include whether the accused has had a chance to adduce evidence controverting the hearsay, challenging it? Has the accused had an opportunity to adduce evidence challenging the credibility of the maker of the statement? Crucially, how the judge directed the jury concerning the weight of hearsay? Has it been made clear to the jury that they haven’t had the chance to hear the witness cross examined and that obviously the weight of evidence which hasn’t been subject to cross examination may be considerably less than that of evidence where there has been cross examination. Another crucial factor will be was the hearsay the only evidence the prosecution relied on in relation to the relevant issue, or was there other supporting evidence?
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Which of the following propositions is or are true?
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Here we’ve clearly got a hearsay statement because Fred made the statement out of court, not in the proceedings and we are assuming that the evidence will be relied upon to prove that Fred was stabbed by Walter. It appears to be admissible, potentially as forming part of the res gestae. The mind of Fred appears being dominated by an exciting event at the time when he made the statement. Having said that, there is some evidence of dislike the court should consider as part of the exception. Or is there likelihood of concoction or distortion because of the dislike that Fred had for Walter? And one should take into account his perjury convictions? Having said that, we should also consider the human rights position. Will it make the trial of Walter unfair to admit this hearsay, given that Fred can’t be cross examined? I think there you must consider, though, amongst other factors, the fact that, as we saw when we looked at statutory hearsay exceptions, it is possible to try to discredit Fred in his absence by reference to, for example, his perjury convictions. We’ve also got supporting evidence, the fingerprints and the ID witness, and Walter also has got the opportunity and the right to try and defend himself by adducing evidence of his alibi. It does not appear that admitting the statement would make the accused’s trial unfair. Certainly, it’s wrong to say that admitting it would clearly violate article 6, because it may well be that if this hearsay is admitted, the accused can still have a fair trial.